In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Wednesday, 29 December 2010

The 1709 Blog has just heard news from the Scottish academic and amiable IP personalityHector MacQueen that the Scottish Law Commission has just published its Discussion Paper No 144 entitled "Prescription and Title to Moveable Property". This doesn't sound much like anything to do with copyright, but let Hector take up the story:

"In Part 11 it considers the possibility raised amongst many other points in Fisher v Brooker [2009] UKHL 41 [the "Whiter Shade of Pale" case, potted by the 1709 Blog here], namely that under Scots law's Prescription and Limitation (Scotland) Act 1973 non-use of a copyright work for 20 years could lead to the right-holder being unable to enforce the right and indeed losing it altogether. While Lord Hope in Fisher thought this could not be right, there is no provision in the 1973 Act to make the point directly. The Discussion Paper discusses the implications for the problem of orphan works, and suggests that the 1973 Act should have added to it a provision similar to section 39 of the Limitation Act 1980 in England, under which limitation rules do not apply to any right for which a fixed time period is provided by any other enactment, whether passed before or after the coming into force of the enactment in question.
This would apply to the copyright legislation and prevent any possible difference between Scotland and England in the application of copyright law.

One of the difficulties for the Commission is that, so far as it can tell, this suggestion could only be put into effect by the Westminster Parliament. This is because it seems that the amendment would apply only to intellectual property legislation, which is not devolved to the Scottish Parliament under the Scotland Act 1998. One of the things the Commission would like to know is whether section 39 of the Limitation Act 1980 has any application beyond intellectual property legislation. If it does, it might then be possible to say that the Commission's suggestion did not apply only to intellectual property and hence could be legislated upon by the Scottish Parliament. Para 1.12 of the Discussion Paper briefly explains the issues".

Hector adds, and we agree, that it would be very helpful if any of our readers who are expert in English law generally could point the Commission in any relevant direction on this.

Tuesday, 28 December 2010

In Case T-19/07Systran SA and another v European Commission, a General Court of the European Union decision of 16 December 2010 which is still available in French only, the Court ordered the European Commission to pay Systran liquidated damages of €12,001,000 for infringing the IP in Systran's copyright and know-how relating to the Unix version of Systran's machine translation software.

In short, the non-contractual liability of the European Union depends on the following conditions being satisfied: (i) the conduct alleged against an institution must be unlawful, (ii) actual damage must have been suffered and (iii) there must be a causal link between the conduct and the damage alleged. The General Court considered that the Commission's conduct ticked all three boxes. According to the Curia press release,

"Between 22 December 1997 and 15 March 2002, the company Systran Luxembourg adapted, under the name EC-Systran Unix, its Systran-Unix machine translation software to the specific needs of the Commission in this field.

On 4 October 2003 the Commission published a call for tenders for the maintenance and linguistic enhancement of its machine translation system. The services required by the Commission from the successful contractor concerned, inter alia, ‘enhancements, adaptations and additions to linguistic routines’; ‘specific improvements to analysis, transfer and synthesis programs’ and ‘system updates’, as covered by the call for tenders.

Following that call for tenders, Systran – the parent company of Systran Luxembourg – contacted the Commission to inform it that the planned work appeared likely to infringe its intellectual property rights. For more than 40 years Systran has supplied companies and authorities with machine translation solutions based on the software which bears its name. In particular, Systran created and marketed a version of the Systran software capable of functioning on the Unix and Windows operating systems (Systran Unix) and of replacing the earlier, now obsolete version, which functioned on the Mainframe operating system (Systran Mainframe).

After correspondence between Systran and the Commission, the latter took the view that Systran had not produced ‘probative documents’ capable of establishing the rights which Systran might claim in respect of its EC-Systran Unix machine translation system. The Commission therefore considered that the Systran group had no right to object to the work carried out by the company which had been successful in the call for tenders.

Considering that, after the award of the tender contract, the Commission had unlawfully disclosed its know-how to a third party and that the Commission was infringing its copyright when unauthorised development of the EC-Systran Unix version was carried out by the successful contractor, Systran and Systran Luxembourg brought an action for damages against the Commission before the General Court.

Since the parties could not reach any agreement to resolve the matter when invited by the General Court following the hearing to attempt conciliation, the General Court now gives its ruling on the action for damages.

The General Court states, first, that the dispute concerns non-contractual liability. The contracts entered into in the past by the Commission to enable it to use the Systran software do not deal with questions of disclosure of Systran’s know-how to a third party or the carrying out of work which might infringe the intellectual property rights of that company.

As regards the unlawfulness of the Commission’s alleged conduct, the General Court considers
that the Systran group has established that there is a substantial similarity, in the core material and certain linguistic routines (programmes), between the Systran Unix and EC-Systran Unix versions, and that the Systran group can therefore rely on the rights held in the Systran Unix version, developed and marketed by Systran since 1993, to object to the disclosure to a third party without its consent of the derivative EC-Systran Unix version, adapted by Systran Luxembourg from 1997 onwards to meet the needs of the Commission.

For its part, the Commission was unable to establish over which parts of the core material and the linguistic routines of Systran Unix it claimed rights of property as a result, inter alia, of the rights it held in dictionaries encoded by its own staff.

Moreover, Systran has proved that, contrary to the claims of the Commission, the alterations
requested by the call for tenders require access to elements of the EC-Systran Unix version which are taken from the version Systran Unix and require their alteration.

Consequently, by granting the right to carry out work which necessarily entailed an alteration of elements of the Systran Unix version of the Systran software which are within the EC-Systran Unix version, without first obtaining the consent of the Systran group, the Commission acted unlawfully by infringing the general principles common to the law of the Member States applicable to copyright and know-how. That wrongful act, which is a sufficiently serious breach of the copyright and know-how held by the Systran group in the Systran Unix version of the Systran software, gives rise to non-contractual liability on the part of the European Union.
As regards the damage, the General Court rules that liquidated damages and interest amounting to €12 001 000 must be paid to Systran to compensate it for the damage suffered as a result of the Commission’s unlawful conduct, namely:

- €7 million corresponding to the total fees which would have been payable between 2004 and 2010 if the Commission had requested permission to use Systran’s intellectual property rights in order to carry out the work specified in the call for tenders, which requires access to and alteration of elements of the Systran Unix version reproduced in the EC-Systran Unix version;
- €5 million as compensation for the effect which the Commission’s conduct might have had on Systran’s turnover in the years 2004 to 2010, and more widely on the development of that company;
- €1 000 as compensation for non-material damage.

In addition, the General Court observes that it is for the Commission to draw all appropriate
conclusions in order to ensure that Systran’s rights in the Systran Unix version are taken into account as concerns the work relating to the EC-Systran Unix version. If they are not taken into account, given that the damage for which compensation is awarded in this case holds only for the period from 2004 to the date of delivery of this judgment, Systran would be entitled to bring before the General Court a fresh action seeking damages in respect of the further damage it might suffer.

Lastly, the General Court adds that the publication of this press release is also a form of
non-pecuniary compensation for the non-material damage caused by the harm to Systran’s
reputation as a result of the Commission’s unlawful conduct".

Monday, 27 December 2010

A friend has written to ask for some guidance in terms of good reading materials. He says:

"I am writing in the hope that you will be able to recommend a practitioners' book that deals with copyright in the music industry and the various layers of rights that come with musical creations. I am interested in getting an overview of "licensing in" the rights to use music/lyrics and/or adapt them to create a new work and to get an idea what standard practice is in the industry. Any recommendation will be greatly appreciated! Many thanks in advance".

If readers have any recommendations or preferences, can they please post them below. If the jurisdiction(s) covered are not immediately apparent, can they give us a clue?

Friday, 24 December 2010

Following Monday's post ("Artist's Royalty Right: not as much impact as was hoped/feared"), The 1709 Blog has received the following thoughts and observations from a pair of Australians Dr Anne Sanders (an art historian) and John R Walker (an artist), who write:

"We have been following developments with regard to the derogation concerning the resale royalty legislation in the UK. Australia has recently enacted an artist resale royalty legislation that differs in major ways from the scheme created by DACS in the UK. The scheme adopted in Australia is nothing like the scheme that was lobbied for by DACS’ sister organisation, Viscopy (Australia). The tender for the implementation of the Australian scheme was not awarded to Viscopy (the CEO of Viscopy is Joanna Cave, ex CEO of DACS). The sole official Australian agency appointed by the government for the implementation and collection of the resale royalty is the Copyright Agency Limited (CAL).

The Australian resale royalty scheme is not in any way a precedent for the adoption of a fully retrospective, compulsory scheme, as envisaged by DACS. The resale royalty differs so much from one country to another as to beg the question: harmonising with what? The UK is being forced to harmonise with a phantom construct. The EU directives are very vague on important detail and the Berne Convention expressly forbids formalities such as compulsory, collective management (rhe Berne Convention Article 5(2) expressly forbids any member country imposing registration on a rights holder as a condition of protecting his copyright. The enjoyment and the exercise of these rights shall not be subject to any formality). Any claim that there is a single, uniform model of artists resale royalty is extremely dishonest.

The scheme, as it exists in the UK, is already a violation of the fundamental concepts that it claims to honour. The current push to further extend it in the UK continues the violation of both copyright as an individual right of control of usage and of the Berne Convention’s requirement that there be no imposed formalities. The imposition of retrospectivity, under Australia’s constitution, raised fatal difficulties under two sections of the constitution; one of which deals with unjust enrichment and the other with what are effectively privatised, tax collections (such as hypothecated taxes).

The Australian Act is not retrospective; it does not apply to the first resale of artworks that were purchased prior to the introduction of the scheme (9 June 2010). The scheme is not compulsory for artists. There is a case-by-case freedom (Clauses 22 & 23) to refuse consent to collection and if an artist wishes to, they can make their own arrangements regarding collection. Neither usage of the right nor collective management is compulsory. The foundational ethos of Australia’s polity is democratic, community-minded, pragmatic and liberal. In Australia, retrospective violation of individual property rights and compulsory collective management need much stronger justification than payments of benefits to those artists most favoured by the market.

Speaking as a successful mid-career artist, retrospectivity, for me, is morally wrong. I have no right to and certainly don’t deserve a royalty on resales of the hundreds of artworks I have sold at good prices to buyers years ago; buyers who were innocent of the knowledge of a future royalty. These buyers gave me bread and wine for my journey. I am grateful for the help and support they gave me. If I had been forced to collect the royalty then I would, as a matter of conscience, have returned all of the money including the collection fee to the person it had been stolen from.

Resale Royalties are of doubtful net value to artists. In 2004, Viscopy commissioned Australia’s highly respected economic modelling agency, Access Economics, to model the likely impact of the fully retrospective, and very draconian scheme, that Viscopy was lobbying for. In this report, Access Economics warned that the claim of net benefit to artists was: “based upon extremely unrealistic assumptions, in particular the assumption that seller and buyer behaviour would be completely unaffected by the introduction of RRR [ARR]” and that, “Access Economics considers that the results of this analysis are both unhelpful and potentially misleading” (see Access Economics' report). Viscopy suppressed this report.

The harm caused by such schemes is in the form of what doesn’t happen, and therefore the harm is easily overlooked and underestimated. When an artist, such as myself, sells a painting for $10,000, I pay $4,000 to the costs of sales and marketing (through my representative agent) and retain $6,000 as income. In the case of $10,000 resale, I would receive $500 (according to the Australian scheme with its flat 5% rate). If buyer nervousness about the resale royalty, was to cause me to lose just one $10,000 first sale (on the primary market), I would need the royalty owed on $120,000 of future resales to recoup the lost income of that one primary market sale. These are very unattractive odds.

The only clear beneficiary of the DACS model of the resale royalty scheme is the management of this piece of transaction fee velocity. The correct term for schemes such as this, and their advocates, is ‘rent-seeking’. The largest single payment will always be to the costs of running the scheme. In the current financial situation, the last thing needed is the imposition of further transaction costs on any market.

The compulsory scheme advocated by DACS and Viscopy is a monopoly restriction of the terms of trade of artists. It is anti-market, anti-competitive and economically illiterate. It imposes significant opportunity costs upon artists as well as significant and unnecessary transaction costs upon the market in which artists make their living. For many artists, maximising first sale prices is a much better bet than gambling on payments when you are old or dead.

The only argument for extending the scheme to long-dead artists is to further increase payments to management. The proposed extension of the UK scheme is rent-seeking par excellence. The principles of a free, civil society are far more important than the secondary, instrumentalist goals of efficiency and convenience for managements.

We should not forgot to mention that the Australian legislation for an artists' resale right is sui generis; it was thought to be too tax-like to be incorporated as an amendment to the Commonwealth Copyright Act, hence recognising the profoundly different definitions and intentions of 'royalty' and 'tax', a point that has escaped the proponents of compulsory, collective management. It is significant again in that it does not conform to the harmonisation argument and being sui generis, does not compromise or set a precedent within the Copyright Act that encourages a diminuition of individual right of control".

This blog welcomes comments from Australia, from Europe and indeed from elsewhere on these observations.

Judging by light attire, it appears that New Year
celebrations in Moldova are warm and sunny. But will
the new Copyright Law be so warmly welcomed?

It's all happening in countries beginning with 'M', it seems. First Macedonia's new copyright law moves into EU-friendly and theatrical-producer-unfriendly mode (see yesterday's 1709 Blog post here). Now it's the turn of Moldova, where copyright owners, users, collecting societies and no doubt infringers will all be sitting up till midnight to greet the Law on Copyright and Related Rights, No. 139/2010 when it enters into force on 1 January 2011. This new statute replaces the Law on Copyright and Related Rights, No. 293-XIII, which has survived for 16 years -- quite a feat in these digital days. According to East Europe IP specialists Petosevic:

"The text of the new law was drafted by the State Agency for Intellectual Property (AGEPI), in cooperation with the European experts, as part of the program Assistance in Implementing the Partnership and Cooperation Agreement (PCA), World Trade Organization (WTO) and EU-Moldova Action Plan in the Context of the European Neighborhood Policy, with the purpose of harmonizing the national legislation with the European and international provisions [This looks a bit like drafting by committee,not usually a good idea -- but any law is only as good as the courts let it be].

The text introduces new provisions concerning the videogram producer rights, the collective administration system, remuneration method and rates, the Mediation and Arbitration Commission organization and responsibilities, and the authorization procedure for institutions that will administer the authors’ patrimonial rights. The Mediation and Arbitration Commission is to be appointed by the AGEPI and will be responsible for examining and settling copyright disputes.

The text of the law defines the videogram as the first imprint of certain images, possibly accompanied by sound, irrespective of whether it represents an audiovisual creation. The physical or legal person whose name appears on a videogram is considered the author thereof until proven otherwise".

Thursday, 23 December 2010

After a narrow vote, a Spanish parliamentary commission has rejected a controversial bill aimed at protecting content owners from internet downloaders. All of the main Spanish parties, except for Prime Minister Jose Luis Rodriguez Zapatero's Socialists rejected the so-called Sinde Bill, named after Culture Minister Angeles Gonzalez-Sinde. The draft legislation would have set up a government commission which would have then provided courts with details of websites offering access to copyright-protected material such as music, movies, video games or software. A judge could then have ordered the closure of offending websites.

The bill sparked furious opposition from internet users who accused the government of violating the freedom of expression but Gonzalez-Sinde said the law only intended to put an end to Spain's position as a 'paradise of piracy.' Techdirt put a different slant on things, firstly praising Spain’s “somewhat more reasonable copyright laws than other parts of the world” highlighting provisions that say that “personal, non-commercial copying is not against the law and also says that third parties should not be liable for copyright infringement done by their users” adding that obviously Hollywood ‘hates’ this and that Spain's recently introduced reform package seemed like a “checklist of the entertainment industry's wishes" and that one of the recent Wikileaks diplomatic cable leaks showed that “US diplomats played a role in pressuring the Spanish government to make these changes, at the behest of movie industry lobbyists”.

An interesting decision by the European Commission on the thorny issue of VAT prompted another post Meltwater muse, but this time on art – and whether we might be expecting an ‘Infopaq’ decision on what constitutes an “artistic work” - it might be marvellous darling – but ‘is it art?’

The case involves a light installation at the Hayward Gallery by Dan Flavin and the decision revolves around whether VAT on Flavin’s work was payable at 5% as an artistic sculpture or at full rate (17.5%) as a light fitting. HM Revenue & Customs unsurprisingly asked for VAT at full rate (£36,000) but the VAT & Duties Tribunal rejected the HMRC claim. I can’t find any details of the case on BAILII on the First Tier Tribunal (Tax) pages, but it seems that HMRC were not convinced and asked Brussels for a ruling on the question of whether or not the installation was “art”. The European Commission ruled that the work should be classified for tax purposes as simple light fixtures. Flavin’s work, they said, has "the characteristics of lighting fittings … and is therefore to be classified … as wall lighting fittings" saying “It is not the installation that constitutes a 'work of art' but the result of the operations (the light effect) carried out by it." Although why anyone would pay thousands of pounds for a light fitting doesn’t seemed to have been answered, it also affects the work of Bill Viola, another American whose work is video pieces, filmed in extreme slow motion...

Art Newspaper reports that Pierre Valentin, the lawyer who challenged the original HMRC ruling saying “To suggest, for example, that a work by Dan Flavin is a work of art only when it is switched on, is comical" adding "One is entitled to ask if the Commission has made a judicious use of its powers when overruling these judicial decisions. The reasons given in the regulation in support of the classification are absurd, and the regulation conflicts with the jurisprudence of the European Court of Justice." Is there one rule for tax – and one for copyright?

But what is and isn’t art has long been debated. In 2007 a London art storage company was ordered to pay compensation to a Swiss collector after an Anish Kapoor sculpture ended up in a skip. In 2004 the Tate Gallery was embarrassed when a cleaner innocently threw out an overflowing rubbish bag. It was part of an installation by Gustav Metzger, aptly entitled Recreation of First Public Demonstration of Auto-Destructive Art. Pickled cows, sheep and sharks in a glass case? Step forward Damien Hirst. A Pile of bricks? Equivalent VIII by Carl Andre was bought by Tate in 1972 and featured in special displays in 1974 and 1975. Tracy Emin’s unmade Bed (1999)? Bags of rubbish? Art? Really?

In the UK, Artistic Works must be ‘original’ and a measure of skill, judgment and labour must be present. Section 4 of the Copyright Designs and Patents Act 1988 provide that these works are (1) (irrespective of artistic quality) a graphic work, photograph sculpture, collage; (2) works of architecture and (3) works of artistic craftsmanship not within category (1) or category (2). Cornish details that a simple drawing of a human hand showing where a vote should be cast, the label design for a sweet tin and drawings for patchwork bedspreads have all been accorded copyright protection (Kenrick v Lawrence [1890] 25 QBD 99, Tavener Rutledge v Specters [1959] RPC 355 CA, Vermaat v Boncrest [2001] FSR 44). In Wham-O v Lincoln even a Frisbee was held to be an engraving because of the concentric rings on the plastic body 91985)although the court in Metix v Maughan [1997] FSR 718 found that a sculpture was “a three-dimensional work made by an artist’s hand’.

But what of tax law and art .... of course some of these debates end up in Court and in 1926 a row erupted in the USA over the work of the Romanian sculptor Constantin Brancusi. The American collector Edward Steichen had bought a bronze version of his tall slender Bird In Space, and attempted to import it to the US. Since it had neither head, feet nor feathers, US customs refused to accept it as a zero-rated work of art, and instead classified it as "a manufacture of metal ... held dutiable at 40%". Steichen paid the $600 duty, but he and the sculptor then went to court – with his legal fees paid by the millionaire collector Peggy Guggenheim. Steichen succeeded in having the decision overturned and in 1928 the court ruled that "while some difficulty might be encountered in associating it with a bird, it is nevertheless pleasing to look at and highly ornamental". So free of tax.

I look forward to seeing where Mr Flavin gets with his claim - and comments most welcome.

The new Law on Copyright and Related Rights for Macedonia -- the former Yugoslavian bit rather than the current Greek bit, that is -- came into force on 8 September, as part of that country's efforts to bring its IP laws in line with the rest of the European Union, which it aspires to join (Macedonia applied in 2004 and became an official candidate in 2005).

The new law, in accordance with the EU IP Enforcement Directive 2004/48, treats copyright infringement as a criminal offence [this might surprise some readers, who only view the Directive as having civil application, but recital 28 of the Preamble states "In addition to the civil and administrative measures, procedures and remedies provided for under this Directive, criminal sanctions also constitute, in appropriate cases, a means of ensuring the enforcement of intellectual property rights"]. For this crime, the law provides a prison sentence of six months to five years for natural persons, and a fine for legal entities. The court is also given the power to order copyright infringers not to continue their business activities. According to the 1709 Blog's sources,

"The new law is more precise and more structured than the previous one. The new regulations are meant to de-monopolize copyright collectives, which guarantee more effective protection and enforcement of copyrights. So far, in practice, a single copyright collective for authors and composers of musical works had a monopoly in copyright protection [It would be good to know more about this move and to place it in the context of the European Commission's current review of collecting society practices].

The law also abolishes copyright protection for theatrical producers. This change was made in accordance with comparative practices, which showed that these copyrights are considered most abstract and are not recognized in most legal systems [We'd love to know more about this. Can anyone enlighten us?].

The new copyright law also sets more realistic copyright levies that should be paid to artists for use of their copyright works by third parties, and it clearly lists all possible cases of free use of copyright works".

Wednesday, 22 December 2010

Moral Rights, spearheaded by British barristers and scholars Kevin Garnett and QC, Gillian Davies, is a massive work on what many practitioners would mistakenly write off as a topic of minor importance. In truth, while the volume of litigation on moral rights -- particularly the right of paternity and the right to the integrity of one's work -- has never been great, the number of problems caused by a failure to understand these rights and to take them into account in a commercial setting has increased, and is likely to continue to do so now that the universal medium of the internet has both amplified the effect of many moral rights infractions and increased the likelihood of their being seen by authors. The categorisation of these rights as "moral" as opposed to "economic" has been to some extent to blame for their neglect: while they are not economic in the sense that rights such as the reproduction and transmission rights influence trade in copyright works, they can have a resoundingly economic impact whether they are exploited, waived or enforced.

While both Kevin and Gillian are very much associated with patents (Kevin is currently a Board of Appeal member at the European Patent Office, where Gillian once chaired a Technical Board of Appeals and sat as a member of the Enlarged Board), and both are creatures of Hogarth Chambers, it is for their work in the field of copyright that they are probably best known and most appreciated: both have been major contributors to the same publisher's IP soap Copinger and Skone James on Copyright, first published in 1870 and thus even more long-running than Coronation Street. Gillian has also served a term at the helm of IFPI, so the copyright credentials of this pairing are unimpeachable.

So what does the book do? Why go to such lengths to create and publish a weighty tome on so under-estimated and misunderstood a topic? The publishers don't give away much information themselves (certainly, when compared with most other publishers of legal books, Sweet & Maxwell are quite stingy with their information). Anyway, according to the book's web page, Kevin and Gillian offer "a practical insight into an area not covered by other texts" -- which is mainly true. Most books on copyright say something about moral rights, but you'd have to lay a lot of them end to end in order to cover the ground this subject-specific title does. The publishers then list its virtues. It:

• Examines moral rights in the UK in detail and contrasts with that of key EU and international jurisdictions

• Discusses the historical treatment of moral rights in the UK

• Considers copyright, the paternity right, the right to privacy and transmission of moral rights

• Offers a practical and comparative approach to an area about which little has been written

• Looks at how moral rights have developed internationally, and examines their treatment in international and regional conventions and treaties

• Compares moral rights in more established civil law jurisdictions with those in less developed common law jurisdictions

• Examines moral rights in 19 of the key European and international jurisdictions, with each jurisdiction being covered by a local copyright expert

• Covers each jurisdiction systematically and comprehensively

• Discusses the significant case law from civil law jurisdictions

• Includes relevant sections of the Copyright, Patents and Designs Act 1988 for easy reference

• Features an extensive bibliography>

Fortunately the authors are not expected to do this alone. They are assisted by a team of many talents, drawing on national (and in some cases multinational) expertise supplied by a long list of contributing experts among whom can be found such household names as Adolf Dietz, Willem Grosheide, Paul Torremans, Irini Stamatoudi and Elizabeth Adeney, aided and abetted by Maria Mercedes Frabboni, Patricia Akester, Jacques de Werra, Gadi Oron and more besides. Quite why this useful information -- which adds considerable value and authority to the book -- is not made available to visitors to the book's web details is beyond the understanding of this reviewer. The book itself is a tour de force. It covers practically every possible issue arising from the various moral rights and is not just a one-stop-shop but a springboard from which the reader can reach out to different legal traditions, technologies and cultures and learn more than he or she ever imagined to exist on the subject. Well done!

Monday, 20 December 2010

Writing in the first issue of Sweet & Maxwell's Entertainment Law Review (Ent.LR) for 2011, at pp.22-24,, Simone Blakeney (Harbottle & Lewis) provides a welcome report on the impact on the Artist's Resale Right (ARR) on art sales in the United Kingdom. According to the abstract,

"The publication by the British Art Market Federation of a study it commissioned from Art Economics on the British Art Market, and the simultaneous updating of the Government's Briefing Paper on the Artist's Resale Right, on July 1, 2010, renewed the UK debate on resale rights. But what is it really all about? Because the debate seems to have continued for years, one can be excused for losing the thread. This article reviews the current position".

What is the current position? The author concludes by asking whether the ARR benefit artists and supports the industry or merely undermines it and threatens the success of the UK art market, concluding thus:

"There are numerous factors to consider on both sides of the argument. It can certainly be argued that it has not really been shown that there has been a dramatic effect on the artists and that the ARR has only benefited a small number of artists, within the framework of the art market as a whole. Accordingly, why risk damaging a valuable market for potentially little return or benefit.

However, what is clear is that it has not been demonstrated that the implementation of the ARR has had any negative impact on the British art market. Art sales have not moved overseas to jurisdictions where there is no ARR. In fact, the art market survives, as it did following the introduction of VAT (arguably a far more cumbersome payment obligation), and has continued to rapidly grow and flourish.

Thus, while it is difficult to judge the effect of a law on a specialist market, in this case the changes that have already taken place appear to have had little negative impact on the British art market and the future change is unlikely to either. Therefore, though the implementation of the ARR to the works of deceased artists was delayed, it is very unlikely that it will not be introduced. Indeed, it is expected that the ARR directive will be fully implemented in the United Kingdom from the beginning of 2012, when finally sales of the works of both living and deceased artists will attract the ARR payment".

Saturday, 18 December 2010

Copyright litigation in the UK has traditionally been an expensive process – but with a new procedure this may be changing.

The Patents County Court (PCC) was set up in 1990 to provide a cheaper alternative to the High Court for litigating IP disputes. But it was not a success and the introduction of the Civil Procedure Rules in 1998 meant there was no difference in procedure or costs between the PCC and the High Court.

Concerns over the cost of IP litigation continued, however, and have led to new procedures for the PCC which came into force on 1 October. These new rules have been extensively discussed over on the PatLit blog, but – who knows? – may turn out to be even more important in the copyright world, where low-value infringement and impecunious claimants abound.

The new procedures include (as the Judiciary of England and Wales website explains):

—the parties set out their respective cases fully but concisely at the outset.—no further evidence, written argument or specific disclosure will be permitted without the permission of the judge. This will be a matter considered at the case management conference.—any other applications will if possible be dealt with on paper or by telephone.—the trial will be limited to one or at most two days.—recoverable costs are capped. The total recoverable is capped at £50,000 for the final determination of liability and at £25,000 for enquiries as to damages or accounts of profits.

As a result the PCC seems to have been exceptionally busy over the last two and a half months. It has attracted copyright cases involving such controversial individuals as Andrew Crossley of ACS:Law and Vivienne Westwood. The downmarket IP court has wasted no time in rolling up its sleeves and getting its hands dirty – with copyright infringement claims ranging from the porn film 5 Linsey Dawn McKenzie Films on Tape to Vivienne Westwood’s design ‘I love crap’.

Wednesday, 15 December 2010

According to an article on Japan Today, an advisory panel in the Japanese government has approved “a plan to tolerate the unlicensed use of copyright works.”

Under the panel’s suggestion, copyrighted works caught in the background of a film or picture will not need to be licensed. Photo credit: Japan Firefox DevCon 2006_4209 CC-BY-NC-NDGen Kanai available at Flickr.

This tolerating attitude only applies to certain unlicensed uses and appears similar to fair use and fair dealing concepts. Currently, the allowed uses are much more vague than a specific fair dealing list, and even a bit more obtuse than the US’s four-factor fair use test. So far, the Japanese allowed uses seem to focus on the nature of the use:

“use of a copyrighted work may be tolerated if the use itself is not the main purpose and the dependence on it is light, if the use is minor and reasonably required in the course of a legal use, or if the use is not aimed at seeing or hearing copyrighted expressions.”

Commenter Mr. Dog - who has invested a lot of energy into explaining the difference between copyright and trademarks, patents and what-you-think-IP-is in the comment section – noted that a fair use type of protection would bring Japan more in line with the rest of the world.

Tuesday, 14 December 2010

Today, in Pink Floyd v EMI Records, [2010] EWCA Civ 1429, the Court of Appeal said that this clause in a 1999 contract must include iTunes sales:

[EMI’s] receipts shall be calculated at the so-called ‘source’ so that they shall incorporate the receipt of [EMI’s] licensees sub-licensees affiliates or any third party obtaining rights in this respect directly or indirectly from [EMI].

While certain terms are often used in media contracts without any legal precision – ‘sublicence’ being one of the worst offenders – and everyone apparently believes they know what they are talking about, parties should be aware that one day a contract may end up in front of a judge (or three in this case). Though the judge may listen to arguments about the matrix of fact, which could include the vagaries of media jargon-speak, if words have very precise legal meanings and even statutory definitions, he’s probably going to go with his legal dictionary.

The Court of Appeal has referred some questions to the CJEU concerning database copyright in their judgment last Thursday about football fixture lists, Football Dataco Ltd & Ors v Yahoo! UK Ltd & Ors [2010] EWCA Civ 1380. The judgment being appealed is [2010] EWHC 841 (Ch).

Here are the questions:

1. In Article 3(1) of Directive 96/9/EC on the legal protection of databases what is meant by “databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation” and in particular:(a) should the intellectual effort and skill of creating data be excluded?(b) does “selection or arrangement” include adding important significance to a pre-existing item of data (as in fixing the date of a football match);(c) does “author’s own intellectual creation” require more than significant labour and skill from the author, if so what?2. Does the Directive preclude national rights in the nature of copyright in databases other than those provided for by the Directive?

Dissecting databases: Questions 1(a) and (b)

Article 1 of the Database Directive defines a database as a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. A previous case about football fixture lists, (C-444/02), said ‘independent’ meant having autonomous informative value. ‘Independent data’ in the football lists would then be complete fixtures (e.g. ‘Arsenal v Chelsea on 26 April at Stamford Bridge’).

Article 3 provides that databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protected as such by copyright.

The Court of Appeal appear to conflate ‘data’ in Article 1 with ‘contents’ in Article 3. If that is correct, then the football list makers never select or arrange at all. They do not start by coming up with the fixtures and then list them chronologically. The first thing they do is generate a list of dates and then arrange the teams and venues within them.

But it is a mistake to confuse what goes into a database with what comes out of it. Routinely, those who create databases enter fragments of information that do not have autonomous value in a piecemeal manner while users take out something else, coherent chunks, often tailor-made according to what variables they have entered.

The million-dollar question: Question 1(c)

The Court of Appeal’s question 1(c) has huge implications beyond this case. Infopaq (Case C‑5/08) established that copyright only protects the ‘author’s own intellectual creation’. If this needs to involve more than labour and skill, many mundane documents will no longer be protected by copyright in the UK.

Saturday, 11 December 2010

The ramifications of Mrs Justice Proudman’s decision in Meltwater continue to niggle away in my mind and I noticed that the London Metro’s headline yesterday (pub: Associated Newspapers) was “Anarchy in the UK”, the title of the infamous sound recording and song, written by Messrs Paul Cook, Steve Jones, John Lydon and Glen Matlock in 1976. The recorded song formed the A side of the Sex Pistol’s debut vinyl release in the UK. Now IF copyright can subsist in a headline and a headline can be an independent literary work ....... and Meltwater tells us it can, then what if that headline itself is copied – here from a song title? Surely the logical conclusion is that the owners of the ‘title’ of song should have the right to protect their work in turn, independently of the lyrics of that the song ...... if it is worth copying, isn’t it worth protecting?

I also noticed the news that 60 artists including Mr Hudson, Guillemots, UNKLE, The Big Pink, The Kooks, Enter Shikari, Coldcut, Orbital, Heaven 17, Jon McClure, Suggs, Gallows and Pendulum have recorded two versions if John Cage’s famous ‘silent’ composition, '4'33"', as part of the Cage Against The Machine project. Billy Bragg and Imogen heap even "rang in" their contributions from mobiles! The news reminded me of a bizarre copyright story from 2002 involving the same work. The composition 4' 33", is credited to avant garde musician and songwriter John Cage (1912-1992) and described thus “For tacet (any instrument or combination of instruments). 4'33'. 20th Century. Performance notes. Composed 1952. 2 pages. Duration 4 minutes and 33 seconds. Published by Edition Peters (PE.P06777). ISBN M-3007-4483-4. With performance notes. 20th Century ...... silent piece for any combination of instruments”. You can purchase the sheet music for the princely sum of $5.95 here http://www.sheetmusicplus.com/title/4-33/1008430.

In July 2002 British composer and recording artist Mike Batt (of ‘The Wombles’ fame) found himself the subject of a threat of copyright infringement action for including the recording "A One Minute Silence," on an album for his classical rock band The Planets. He was accused of copying the song it from the work by Cage. Remarkably Batt settled the matter out of court with the BBC reporting that Batt paid an undisclosed six-figure sum to the John Cage Trust, telling the Press Association at the time: "This has been, albeit a gentlemanly dispute, a most serious matter and I am pleased that Cage's publishers have finally been persuaded that their case was, to say the least, optimistic” adding "We are, however, making this gesture of a payment to the John Cage Trust in recognition of my own personal respect for John Cage and in recognition of his brave and sometimes outrageous approach to artistic experimentation in music." Batt credited "A One Minute Silence" to "Batt/Cage". At the time lawyer Duncan Lamont told BBC Radio 4’s Front Row the question was "Is it a work?" saying "Has it been written down, is it a literary, artistic or dramatic work? The argument will be there is no work because there are no notes." A good a starting point as any, but I wondered if 1709 Blog readers had any illuminating thoughts they might care to share on this case - or indeed on my “anarchy” musings?

Thursday, 9 December 2010

There's a new reference to the Court of Justice of the European Union for a preliminary ruling -- this time from the Østre Landsret (Denmark) -- in Case C-510/10DR and TV2 Danmark A/S v NCB. The questions referred are as follows:

"1. Should the terms 'by means of their own facilities' in Article 5(2)(d) of Directive 2001/29/EC [the Information Society Directive] and 'on behalf of and under the responsibility of the broadcasting organisation' in recital 41 in the preamble to that directive be interpreted with reference to national law or to Community law?

2. Should it be assumed that the wording of Article 5(2)(d) of Directive 2001/29/EC, as, for example, in the Danish, English and French versions of that provision, is to mean 'on behalf of and under the responsibility of the broadcasting organisation' or, as, for example, in the German version, is to mean 'on behalf of or under the responsibility of the broadcasting organisation'?

3. On the assumption that the terms cited in Question 1 are to be interpreted with reference to Community law, the following question is asked: What criteria should national courts apply to a specific assessment as to whether a recording made by a third party (the 'Producer') for use in a broadcasting organisation's transmissions was made 'by means of their own facilities', and 'on behalf of [and/or] under the responsibility of the broadcasting organisation', such that the recording is covered by the exception laid down in Article 5(2)(d)?

4. In connection with the answer to Question 3, answers are sought in particular to the following questions:

(a) Should the concept of 'own facilities' in Article 5(2)(d) of Directive 2001/29/EC be understood to mean that a recording made by the Producer for use in a broadcasting organisation's transmissions is covered by the exception laid down in Article 5(2)(d) only if the broadcasting organisation is liable towards third parties for the Producer's acts and omissions in relation to the recording, as if the broadcasting organisation had itself carried out those acts and omissions?

(b) Is the condition that the recording must be made 'on behalf of [and/or] under the responsibility of the broadcasting organisation' satisfied where a broadcasting organisation has commissioned the Producer to make the recording in order that that broadcasting organisation can transmit the recording in question, and on the assumption that the broadcasting organisation concerned has the right to transmit the recording in question?

5. Clarification is sought as to whether the following situations may or must be taken into consideration for the purpose of answering Question 3(b), and if so, what weight should be given to them:

i. Whether it is the broadcasting organisation or the Producer which has the final and conclusive artistic/editorial decision on the content of the commissioned programme under agreements between those parties.

ii. Whether the broadcasting organisation is liable towards third parties in respect of the Producer's obligations in relation to the recording, as if the broadcasting organisation itself had carried out those acts and omissions.

iii. Whether the Producer is contractually obliged by the agreement with the broadcasting organisation to deliver the programme in question to the broadcasting organisation for a specified price and has to meet, out of this price, all expenses that may be associated with the recording.

iv. Whether it is the broadcasting organisation or the Producer which assumes liability for the recording in question vis-à-vis third parties.

(c) Is the condition that the recording must be made 'on behalf of [and/or] under the responsibility of the broadcasting organisation' satisfied in the case where a broadcasting organisation has commissioned the Producer to make the recording in order for the broadcasting organisation to be able to transmit the recording in question, and on the assumption that the broadcasting organisation in question has the right to transmit the recording, where the Producer, in the agreement with the broadcasting organisation relating to the recording, has assumed the financial and legal responsibility for (i) meeting all the expenses associated with the recording in return for payment of an amount fixed in advance; (ii) the purchase of rights; and (iii) unforeseen circumstances, including any delay in the recording and breach of contract, but without the broadcasting organisation being liable towards third parties in respect of the Producer's obligations in relation to the recording as if the broadcasting organisation had itself carried out those acts and omissions?"

I'm afraid I don't know the background to this dispute. If any reader can advise us, we'll all be grateful.

Eircom, the Irish internet service provider, has resumed its policy of cutting off the internet connection of customers who illegally share music online. The company had suspended its policy earlier this year but before this the company sent out about 1,000 warning notifications each week to people who were allegedly infringing copyright by illegally downloading music. Its “three strikes” policy allows customers three official warnings before their internet connection is suspended.

The move is especially interesting given that the Mr Justice Charleton, in Irish High Court, had (somewhat reluctantly) agreed with rival broadband supplier UPC in a battle against several record companies, ruling that internet service providers were not liable for a customer’s illegal downloading nor did Irish law provide any basis for a ‘three strikes’ approach. In an very impressive presentation on recent case law in this area at the Music and IP conference in London yesterday (8th December) 5RB barrister Christina Michalos explained that Mr Justice Charleton said that there was no injunctive relief available in Ireland in the matter and that Irish copyright legislation made ”no proper provision for the blocking, diverting or interrupting of internet communications intent on breaching copyright” - and that the powers of Irish courts did not extend to obligating an ISP to block access to file sharing sites. Despite this, Eircom has decided to resume the strategy it implemented a year earlier following an out-of-court settlement with the same companies. Stephen Brennan, Eircom’s managing director for consumers and small businesses said that as the country’s largest broadband provider, Eircom felt its method of warning internet users about their activities was the best compromise between music companies and internet providers. Before the suspension Eircom had not actually yet disconnected any customers’ broadband but it did have some on three strikes at the time of the High Court case.

Simultaneously Eircom has launched a new online legal service, MusicHub, which offers free and unlimited streaming to Eircom broadband customers along with deals for legally downloading music to personal computers offering a range of bundled download packages where the unit price for each track downloaded could be as low as 32 cents. Launching the new service yesterday, Eircom's Stephen Beynon said "MusicHub is a major development for Eircom in the online content space. We are the first and only internet provider in Ireland to offer online streaming as part of a music service. Customers will not find a greater selection of music across all genres anywhere else in Ireland from their broadband provider". Mr Brennan described it as the “carrot” part of the company’s carrot-and-stick approach to counteracting copyright infringement, with the three strike process agreed with record labels being the “stick”. An Eircom's statement stressed net suspensions was a "measure of last resort".

Media C.A.T. Ltd v A to H [2010] EWPCC 17 is a series of eight actions brought against unidentified file-sharers who are alleged to have indulged in activity which infringes the copyright in ""5 Linsey Dawn McKenzie Films on Tape", said to be a pornographic film featuring an actress described by Wikipedia as being "known for her naturally large breasts". In each instance Media CAT was applying for judgment in default under the Civil Procedure Rules, CPR r.12.4(1). In the particulars of each claim in each action, Media CAT asserted that it represented the owners or exclusive licensees of copyright works of a pornographic nature and maintained that the relevant defendant had been engaged in peer-to-peer file sharing which involved copyright infringement. Damages and an injunction were sought.

Sitting in the Patents County Court, Judge Birss QC refused all eight applications. Concluding that it would be inappropriate to give judgment in default, the judge observed that in three cases the defendant had filed a defence and in three others there was nothing to show that the proceedings had been served. While the defendants in the other two actions appeared to be in default the claims did not fall within r.12.4(1) since Media CAT was asking for an injunction as well as damages and the application should have been made under Part 23 of the Rules.

Obiter, Judge Birss QC considered the nature of the alleged infringing act and added:

" ... The claimant's right to bring these claims at all may be entirely solid but that does not emerge clearly from the statement of case. A key part of the plea of infringement rests on an assertion that "allowing" others to infringe is itself an infringing act, when it is not. There is no plea that the works qualify for copyright protection at all. ...

In all these circumstances, a default judgment arrived at without notice by means of an essentially administrative procedure, even one restricted to a financial claim, seems to me to be capable of working real injustice.

Peer to peer file sharing which involves copyright infringement is an important and serious matter and claimants with a proper claim are entitled to use the full machinery of the courts to enforce their rights. Default judgment is an important part of the court's armoury in order to ensure that defendants engage with the legal process properly but it would not be a significant burden on claimants in cases like these to be required to use the part 23 procedure in all such cases".

How times change. A hundred years ago, no plaintiff in copyright infringement proceedings would have dared confess to attempting to enforce rights in a pornographic work. Even if the subject was not raised by the parties, the court might sua sponte deem a work obscene and decline to enforce copyright in it. See for example Glynn v Weston Feature Films [1916] 1 Ch 261.

To dive straight in, the claimants are two German newspapers, the Frankfurter Allgemeine Zeitung (FAZ) and the Süddeutsche Zeitung (SZ). They regularly publish book reviews in the feature pages of both their online and (how quaint!) paper editions.

The defendant, Perlentaucher Medien GmbH, runs an online culture magazine at www.perlentaucher.de. “Perlentaucher” is German for “pearl diver(s)” and is believed by me to refer to the defendant's activities of searching for literary gems or "cultural pearls" (right; not to be confused with cultured pearls, left) and presenting them to its avid readers. Among other things, the defendant makes available brief abstracts of book reviews published in the FAZ and SZ. The titles of the abstracts indicate the source of the original review. However, the abstracts often contain verbatim quotes of particularly expressive or significant sections of the original reviews. The defendant has licensed online book sellers amazon.de and buecher.de to make the abstracts in question available on their respective websites as well. FAZ and SZ contest that the defendant's actions, especially granting licences to third parties, constitute copyright infringement.

The BGH's response to those claims basically consists of the most standard of legal answers. Yes, well done, you've all guessed it: “It depends.” Fortunately, it did not completely leave us alone with that enigmatic judgment (enigma machine, right; presiding judge of the I. Zivilsenat, Prof. Dr. Joachim Bornkamm, left), but actually did care to elaborate. The crucial provision in the German Copyright Act (UrhG) is s. 24 (1). According to s. 24 (1) UrhG, an independent work created by free use of the work of another may be published and exploited without the consent of the author of the used work. That means that for instance the original book reviews published in the FAZ and SZ do not infringe the copyright in the books that are being reviewed. The same would seem to be true for a brief abstract of a lengthy book review. For, as the BGH points out, in literally all cases it is merely the linguistic expression and not the intellectual content of a book review that attracts copyright. Copyright generally permits one to summarise the contents of a literary work in one's own words, and to exploit that summary. In order to establish whether the abstracts in question infringed the claimants' copyright, therefore, it is necessary to establish to what extent the abstracts made use of original phrases (original in the copyright sense) from the original reviews.

Since the BGH was not satisfied that the facts had been properly established in the course of the appellate proceedings, the case was remanded to the Higher Regional Court of Frankfurt am Main (the ball is back in their court, so to speak). As there appear to be a number of abstracts with different ratios of quoted material, it will be interesting to see where the court draws the line between free use and infringement, and if the parties then accept that judgment or pay a second visit to the BGH. Watch this space, but better not hold your breath.

Monday, 6 December 2010

In "Copyright owners better off in a regime that allows downloading from illegal sources" this weblog reported on the 15 November ruling of the Court of Appeal of the Hague in Eyeworks v FTD. Today the IPKat posted the an English translation of the judgment in full (here) together with a short note from Dutch copyright practitioner and scholar Dirk Visser.

Dirk has now been able to procure an English translation of an even more complex ruling, on some of the same issues and decided by the same court on the same day, in ACI Adam BV and others v Stichting de Thuiskopie and another (here). Explains Dirk:

"Here is another decision by the same Court from the same day, parts of it are identical (on the private copying from an illegal source), but it is an entirely different case, between different parties, brought by the blank media industry against the home copying levy organisation in the Netherlands. This one is (even) more complicated.

The Court rules that downloading from an illegal source is permitted in The Netherlands -- and has to be compensated by ‘fair compensation’ (through levies or otherwise). The Court considers that this might be in violation of the Three-step test of article 5.5 of the Copyright directive, but also that an interpretation of Dutch national copyright law in line with the directive on this issue would result in an inadmissible interpretation ‘contra legem’".

Dirk feels disappointed that neither case got as far as a reference to the Court of Justice of the European Union and, in terms of clarifying the principles involved and ensuring that courts throughout the EU take the same line ie is quite right -- though a case can be made for saying that, if the Court of Appeal of the Hague could determine the issues before it without needing external help, it was right to do so.

It was back in February that the US government said the Amended Google Book Settlement still didn’t come up to scratch – but that they remained committed to working with the parties to sort something out. Since then, silence, except for the quiet whirring of Google’s scanners copying books and today the announcement that Google ebooks are available from a new US-only Google ebook store.

In October 2009 New York Law School held a conference about the dispute and Settlement entitled ‘D Is for Digitize’. The papers delivered have now been published online here. It is welcome reading matter for those who are still pacing up and down, wondering whether the Settlement is going to be approved or rejected. The papers explore the Settlement from various angles including the counterfactual scenario (what if there had been no Settlement?), how the Settlement sits in the worldwide orphan works debate and the role of the Department of Justice in bringing the Settlement to a satisfactory conclusion.

Meanwhile in a cozy corner of a pub in Oxford, England…

Prof A: It’s maddening, the way there’s been no closure to the Google Books Dispute.

Prof B: Not so worried myself, old boy.

Prof A: You don’t mean you’ve been won over by the royalties you’ll be getting from ebook sales?

Prof B: Not really – no one’s going to buy my dreary out-of-date, out-of-print works. There is a reason why they went out of print, you know.

Prof A: Aren’t you worried that it’ll only be the Yanks who will get to read books licensed under the Settlement? I mean, it could lead to a brain drain – much better to go and study in the States than anywhere else.

Prof B: You’ve hit the nail on the head, old bean. Google University have just created a new chair of Orphan Trivia – and they’ve offered it to Yours Truly!

Limewire is no more and the company has said that it will close its small (legal) download business and cease trading. In a statement, Team Lime said: "Given our current situation, plans to bring our separate, legal music service to market have been cancelled. The beginning of 2011 will mark the closing of LimeWire's New York office and cessation of business by LimeWire. We attracted some of the top talent from the technology community over the years to build our new music service. We'll be helping our team members commence their job search over the next few months".

But next on the radar of content owners may well be RapidShare which has attracted particular interest in Europe, notably in Germany, where the Regional Court of Hamburg ordered RapidShare to put in place filters that would stop users illegally sharing 148 specific text books in reponse to a claim by book publishers. It seems that RapidShare failed to comply and the publishers went back to court with the result that the court have now imposed a 150,000 euro fine on the tech company with the court saying that the company had "culpably failed to take reasonable examination and control measures. These measures include the utilisation of a word filter, which checks the file name during the uploading of files to the servers of [RapidShare] with regard to whether the author, the title, the ISBN number of the publisher may be contained in this name".

It seems that Indian film music composers may have to look for other avenues of employment if Bollywood film producers make good their threat and stop producing films in protest against proposed new copyright legislation – or find music from other sources. The Times of India reports that a Parliamentary Standing committee has recommended that the Copyright Amendment Bill 2010 should provide that film producers give authors, lyricists and composers an ongoing royalty from a film – and shared ownership.

Award winning producer Yash Chopra, who along with other film producers had made several presentations before the Committee said, "Ours is the entertainment business, yet like the alcohol or tobacco industry we have to pay huge taxes in the form of VAT, service tax and stamp duty. Now if the Copyright Bill is passed it will be the end of us as it will be very difficult to make films." Echoing this was producer Boney Kapoor who told the Times of India: "We are already burdened with so many taxes and if this is implemented it would be difficult to sustain ourselves”. Another producer said that if the revisions are implemented iit will only lead to “the death of Bollywood music” as it will not be economically viable for producers to have India music in their films.

The planned proposal is to protect the rights of authors (scriptwriters, composers and lyricists) who have in the past usually been paid a fixed fee by producers, who then controlled all rights in the music and lyrics - in effect a “buy out” of the author’s rights. The revision would mean that although the producer of the movie will be the first owner of the music when used as part of cinematograph work, the lyricist or composer will be first owner for all other purposes. The producers are not happy with this and Chopra said "If we will be left with no rights how will we monetise any of the property of a film and give them royalty?" adding, "In 2013, we are celebrating 100 years of Indian cinema but looks like by then we may be writing our obituaries." Perhaps more tellingly, Ameet Naik who represented the producers' body before the panel said, "The bill in its present form is tilted towards established authors. Producers will think twice before hiring new ones and there is every chance even if they get work [they] will not be given credit" with (I imagine) the film companies claiming to be the ‘author’ and therefore owning the copyright – not too unlike the US and UK music industries in the fifties and sixties when managers, record label executives and publishers often put themselves down as co ‘authors’ to receive an ongoing share of song writing royalties. Chopra added to this saying "Several composers and writers just want the money and are not bothered about credit, all they insist is to just give them one amount and that is it” adding that the changes would dramatically alter the Bollywood funding model and leave producers exposed in recouping their investments. Chopra said "Most songs in films abroad are taken from albums, which is totally different from how music is made in India. Music for any film is a team contribution and not an individual's work. How can they be first owners?" It seems that an alternative new business model might be one where the film producers set up ‘independent’ record labels and music publishers – acquiring copyrights from songwriters in a different way, which they can then of course can still control and feed into their films.

Understandably, Lyricists, composers and singers welcomed the news with producer-director-composer Vishal Bharadwaj saying “As for the law favouring composers and lyricists, I am an artiste first and I feel it is a historical and large-hearted decision. At least this will secure their future now. So many of my songs have been used in serials and commercials but nothing comes to me” adding “Composers, writers and lyricists get royalty abroad, so why not we in India".

Sunday, 5 December 2010

Da Bears. Perhaps one of the most famous phrases in 1980s American football. The Chicago Bears had a lot of cultural staples that decade, Mike Ditka, Refrigerator Perry and the 1985 Superbowl Shuffle (video available here). But as the 25th anniversary of the Superbowl Shuffle approaches, there’s trouble in the Windy City.

Julia Meyer, owner of the copyrights to the video and song Superbowl Shuffle has brought suit against cable network Viacom, owner of MTV and VH1. Meyer alleges copyright infringement under the US Copyright Act, misrepresentation under the Lanham Act, deceptive trade practices under Illinois state law and unjust enrichment. (Full brief pdf)
What did Viacom do? It played the Superbowl Shuffle video on MTV and VH1, not the whole video, but clips of it. The shortest clip, 16 seconds, the longest, a minute and a half.
According to Meyer,

“The Defendants’ conduct significantly damaged the market for the ’85 Bears Shuffle Video. [Because now that people have seen it, they’ll know better than to buy it?] The 25th Anniversary of the ’85 Bears Shuffle Video will take place during late 2010 and early 2011, which has created additional interest from the public in the ’85 Bears Shuffle Video.” [What’s more likely to create additional interest is that the Bears could make it to the Superbowl this year. They’re currently first in their division, just ahead of the Green Bay Packers.]

Copyright Infringement

Meyer’s claims that by airing the Superbowl Shuffle clips on MTV and VH1, Viacom’s actions were “willful and deliberate, and in utter disregard for Meyer’s rights.”
All I can do here is speculate. Once upon a time, MTV and VH1 actually played music videos, full music videos, all of the time. That suggests that the Networks are familiar with the standard process for licensing videos and would not have aired the videos without going through that standard process. (Unfortunately, I am not familiar with the standard process and have no idea if there is any sort of set compulsory licensing in place for music videos or if each video’s airing must be negotiated with the rightsholder.)
On the other hand, most of the videos MTV and VH1 show are produced and owned by major record labels. This video is different. It is not owned by a label, but by a entrepreneur who licenses the video via a company in Illinois. Did Viacom try to take advantage of this situation by airing the video without going through the normal licensing practice? The brief filed by Meyers gives us no information about any relevant background facts in this area.

Deceptive Trade Practices and Unfair Competition

The claims under the Lanham Act and Illinois State Law (815 ILCS 510/2) are similar. Meyer and co-plaintiff Renaissance Marketing Corporation alleges that by showing clips of the Superbowl Shuffle on VH1’s program One Hit Wonders and MTV’s MTV News, Viacom engaged in “unfair and deceptive trade practices in that it likely caused confusion and mistake by the public.”
At first, this sounds pretty ridiculous. How would the public confuse a football team with some cable channels? Would the public really think that the airing of the videos means the Chicago Bears are endorsing VH1 and MTV? But the alleged confusion isn’t over affiliation or endorsement. Meyer’s claim is that the public will be mislead into believing that she authorized the use of the video on the programs.
It’s possible viewers believe the owners of videos approve the playing of their videos. But I wonder how realistic it is that the public would believe that for the video uses at issue here. The MTV clip was part of a news show including interviews with members of the 1985 Chicago Bears team. Does the public assume permission is granted whenever a very brief (40 seconds in this case) clip appears on the news as part of a story? And the real question, would the public assume permission is given by the video owners for videos that appear on VH1’s One Hit Wonders? Being known as a one-hit-wonder isn’t usually a good thing. The public might assume that if specific permission were needed, there wouldn’t be any videos on the show.
The deceptive practices and likelihood of confusion claims are plausible but tenuous at best. My guess is the case settles; I’ll be surprised if it goes to trial.

Saturday, 4 December 2010

Throughout my childhood my father used to tell me, “Ignorance is no excuse for the law.” It didn’t matter whether I was jaywalking or learning the hard way that glass jars of pickles don’t bounce; ignorance was no excuse. Well it looks like there may be one time when ignorance is an excuse. But I’m in doubt.

Criminal Charges under US Copyright Act Dropped

Many readers may have been following the USA v. Crippen case on other sites. - Wired has a fairly detailed running account of the case. – This is the case in which California resident Matthew Crippen was criminally charged for violations of the US Copyright Act. It was to be the first criminal case addressing a violation of the Copyright Act’s restriction against circumvents technical protection measures (TPMs) designed to protect copyrighted works. “Was” because this past week the prosecution dropped the charges.
The many reports on the prosecution’s decision list a number of factors leading to the decision to drop charges. Rumors of prosecutorial misconduct and concerns about the jury learning of crimes committed by the prosecution’s witnesses are two of the reasons mentioned. (See Wired, above, and TechSpot for more on these reasons.) But it seems like the main reason, which is related to both of these, is Judge Gutierrez’s decision that the prosecution would need to prove that Crippen knew he was violating the law. (“The government said it would have dropped the case if that more onerous standard was required.” Wired.)

Looking for “Knowledge”

I’m still trying to figure this one out. According to Wired (specific article link), “Gutierrez ruled that the government had to prove Crippen knew he was breaking the law by modding Xboxes.” Maybe there’s a nuance that got missed or misinterpreted somewhere between the judge and Wired.
Crippen was modifying X-Boxes, allegedly so that they would play pirated games. From what I can gather, the statute Crippen was charged for violating was 17 USC 1201. I am not sure if it was part (a) for “circumventing a technical measure” or part (b) for “circumventing protection afforded by a technical measure.” However, the rest of the provisions in each section are parallel so we can look into the knowledge element without knowing with which specific provision Crippen was charged.

Subsections (A)

The first requirement, in § 1201 (a)(2)(A) and (b)(1)(A), is that the main purpose of the service be to circumvent a measure that effectively controls access to the work. This could have a knowledge element, requiring the defendant to know that the changes he was making would give access to works that were previously not accessible. But knowing you’re getting access to something you couldn’t access before is not the same as knowing you are breaking the law. So our knowledge of committing a crime being an element isn’t here.
-- NOTE: There’s a number of elements within this each Subsection. I am only looking at potential knowledge elements. For a great in-depth look at each element of the crime, see this post on bunnie studios by someone who was called as an expert witness in this case. --

Subsections (B)

The next subsection, (a)(2)(B) and (b)(1)(B), requires that any commercially significant purposes aside from allowing access to previously restricted items are limited. No knowledge element there.

Subsections (C)

The last subsection requires that the service be marketed for use in circumventing a TPM. This requires the same sort of knowledge element as subsection (A), the knowledge that the service is providing access to restricted works. Again, there doesn’t appear to be anything suggesting that in order to violate this law the person circumventing the TPM needs to know that circumventing TPM is illegal.

So Where’s the Knowledge

Is there a knowledge element elsewhere in the DMCA or in the US Copyright Act that applies to this section? What am I missing? Do any of our readers have an idea why the judge would require the prosecution to prove that the defendant knew he was breaking the law?

Search This Blog

Would you like to receive each post by email?

2,782 readers now receive The 1709 Blog by email circular. Why don't you join them? To subscribe, just type your email address in the box below, then click the 'Subscribe' button

email:

Folllow us on Twitter

The 1709 Blog, and some of the choice comments of its blog team on copyright topics, can now be followed on Twitter at @1709Blog. When we last looked, we had 2,162 followers so, if you sign up, you won't be alone!